The crime of falsification of documents

As a preliminary consideration, it should be noted that the Penal Code punishes perpetrators of the crime of forgery of public, official, commercial, or private documents with imprisonment and fines. There is only one exception, in which the penalty is not imprisonment but rather a fine, in cases where the forgery was committed by an authority or public official through gross negligence.

Document Concept

Article 26 of the Criminal Code provides a definition of what constitutes a document. It states that a document is any material medium that expresses or incorporates data, facts, or narratives with probative value or any other type of legal relevance.

Based on the above definition of a document, one might think that it does not include computer or telematic documents. However, many sentences for document falsification condemn forgery of such documents, considering that they are also intrinsically included in the definition of a document in Article 26 of the Criminal Code.

What types of documents can be forged?

Public Documents

These are understood to be those authorized by a public official granted the status of public notary by law, drawn up in the exercise of their authority, and which comply with the formalities legally required for such documents. For example, notarial deeds.

Official Documents

Any document issued by a public official that, unlike public documents, lacks public certification. For example, ID cards, driver’s licenses, high school diplomas, and Social Security prescriptions.

Commercial Documents

Those that reflect commercial or trade obligations or that certify transactions and activities occurring within the scope of commercial or business transactions. In practice, the concept of a commercial document is extremely broad, encompassing any document that is an expression of a commercial transaction, embodied in the creation, alteration, or termination of commercial obligations, whether used to cancel them or to accredit rights or obligations of such nature. These include not only those expressly regulated in the Commercial Code or in commercial laws, but also all those that record a commercial transaction or are valid or effective in establishing rights or obligations of such nature or serve to demonstrate them.

Without being exhaustive, the following can be mentioned as examples of commercial documents:

• bills of exchange,
• promissory notes,
• checks,
• credit orders,
• waybills,
• bills of lading,
• deposit receipts,
• contracts or obligations of a commercial nature,
• invoices,
• delivery notes.

Private documents

It is defined by exclusion as any document that is not public or official.

What happens if a photocopy is forged?

When it comes to material falsification committed on a photocopy, the nature of the original document, whether official or commercial, is not transferred to the photocopy unless the photocopy is witnessed or authenticated. However, falsification of a photocopy is not necessarily atypical and may be a criminal offense and punishable as falsification of a private document under Article 395 of the Criminal Code.

Conduct of document falsification under article 390 of the Criminal Code

Our Penal Code, in its article 390, punishes with prison sentences and fines the following acts constituting falsehood:

1. Alter a document in any of its essential elements or requirements

This alteration may consist of simply adding something new to the document, replacing one of its parts with another, or deleting one of them.

2. Simulating a document in whole or in part, in such a way that it misleads as to its authenticity

It involves the creation of an inauthentic document ex novo that is capable of affecting its evidentiary value. For example, this would constitute falsification if a vehicle license plate were created to be replaced with an original.

3. Assuming the involvement of persons in an act who did not have it, or attributing to those who have participated in it statements or declarations different from those they have made.

This would include those cases in which the person who must give an account, certifying the content of a certain act, refers to the intervention of subjects who did not participate in it or attributes to them statements that they did not make.

4. Failing to tell the truth in the narration of the facts.

It is the “recording of untrue facts or omitting true facts that are relevant to the purposes of the document in question” (STS 359/2019, rapporteur Colmenero Menéndez de Luarca).

Which subjects can be criminally liable?

The first three types of conduct mentioned above are punishable whether committed by authorities or public officials or against private individuals. However, with regard to the conduct listed in section 4, it may only be committed by authorities or public officials, not by private individuals, as they are not under a duty to be truthful in their statements.

The four forms of falsification included in article 390 of the Criminal Code can be classified into two groups:

On the one hand, those referring to numerals 1 and 2, have the meaning of any intervention by the author on the specific material support of the document, that is, a material falsification.

Conversely, sections 3 and 4 punish so-called ideological falsehoods. That is, those that affect the veracity of the document, that is, its correspondence with the reality of the facts contained in the document. For example, anyone who creates documentary evidence of a fact that is false or mendacious would be guilty of ideological falsehood.

Forgery of a private document

Article 395 punishes falsification of a private document whenever it involves one of the first three types provided for in Article 390 of the Penal Code. Unlike falsifications of official or commercial public documents, falsification of a private document requires, as a subjective element, that it was carried out to harm another person.

Penalties for the crime of document falsification

The Penal Code, in its article 390, provides for prison sentences of three to six years and a fine of six to twenty-four months and special disqualification for a period of two to six years, in the event that the deceitful conduct described in said article has been committed by an authority or public official in the exercise of their functions.

In the event that falsifications in public, official, or commercial documents have been committed by a private individual, the penalties will be six months to three years in prison and a fine of six to twelve months.

Finally, in the event that the falsification was committed in a private document, the penalty to be imposed will be imprisonment from six months to two years .